#178 / Trump v. Hawaii

Supreme Court Justice Sonia Sotomayor (dissenting)

I have now read the Supreme Court decision in Trump v. Hawaii. This is the "Muslim Ban" case. Click the link for a full copy of the decision. You can click right here for an analysis published on SCOTUSblog.

Chief Justice John Roberts delivered a decision that validated the president's action in restricting entry to the United States by nationals of seven countries, most of which countries have majority-Muslim populations. Justice Roberts wrote on behalf of himself, Justice Kennedy, Justice Thomas, Justice Alito, and Justice Gorsuch. He said that Section 1182(f) of the Immigration and Nationality Act provides the president with the authority the president needs to legitimize his exclusionary order. 

The statute, which can be seen below, is clearly intended to give the president exactly the kind of powers he utilized in this case. As Justice Roberts said, the law "exudes deference" to the president:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Furthermore, the Court almost always holds in favor of the president when the president makes a decision on "national security" grounds. Orders restricting entry to various foreign nationals were issued by Presidents Carter, Reagan, Clinton, Bush, and Obama, using the authority of Section 1182(f). 

Given the very clear language of the law, and given the fact that it really does not make much sense for the Supreme Court to try to second-guess a president when the president is making national security decisions, how could people be as outraged by this decision as they seem to be?

Let's consider what the dissenters say!

One dissent was written by Justice Breyer, on behalf of himself and Justice Kagan. Justice Breyer noted that President Trump's Executive Order was filled with various provisions that give discretion to government officials to grant exceptions and "waivers," and that the Administration had cited the existence of these provisions as proof that the Executive Order was not a "blanket" exclusion that would constitute a "Muslim Ban." Such a ban, based on religious discrimination, would clearly be unconstitutional under the First Amendment to the Constitution, but because waivers were provided for in the Executive Order, it was clear that the president's Order was not a blanket "Muslim Ban" at all. That was the argument advanced by the president's attorneys and accepted by Justice Roberts and the Court majority.

Well, said Justice Breyer, if the Executive Order is not a "Muslim Ban," as the President assured the Court, then all the exceptions provided within the Order should have resulted in the entry of many Muslims into the United States. What were the facts? Justices Breyer and Kagan thought that it was important to review the facts, and here is what they found: While the Executive Order does, theoretically, provide a possibility for those who might otherwise be excluded to enter the United States, with a waiver, almost no such waivers were actually issued. Here is a quotation from the Breyer dissent: 

An examination of publicly available statistics also provides cause for concern. The State Department reported that during the Proclamation’s first month, two waivers were approved out of 6,555 eligible applicants.

In summary, while President Trump's Executive Order was structured in a way that would allow entry into the United States to those who were clearly not a national security threat, the provisions that would allow the issuance of waivers were not, in fact, being used, and the net effect was that the Executive Order was, actually, a de facto "Muslim Ban." That makes it unconstitutional. If the administration of an otherwise legal process is, in fact, an exercise in religious discrimination, the First Amendment has been violated. 

Justice Sotomayor wrote another dissent, on behalf of herself and Justice Ginsburg. This dissent examined the long string of statements by Donald J. Trump, before and after becoming president, that denigrated and denounced Muslims. As most recall, candidate Trump called for a "total and complete shutdown of Muslims entering the United States," and this continued to be his position, as advertised on his website after he assumed the presidency. Justices Sotomayor and Ginsburg thought that what a President "says" he wants to do ought to be examined in trying to analyze what he has actually done. If the president's Executive Order was, in actuality, an attempt to ban Muslims from the United States, solely on the basis of their religious beliefs (and if, in fact, it had that effect), then that Executive Order is in violation of the Constitution. 

So there is where the outrage comes from!

The outrage comes from the fact that the Court majority "pretended" that all that matters were the words on paper. The dissenters said that the Court needed to look at the facts and the president's actual motivation in issuing his exclusionary Executive Order.  

If the motivation for an action is based on an unconstitutional desire to impose the kind of religious discrimination that the Constitution forbids, and if an Executive Order is administered in a way that does, in fact, achieve that unconstitutional objective, then the Court needs to uphold the Constitution, based on the realities.

An excellent article in The Atlantic puts it this way: The decision in Trump v. Hawaii was "A Failure of Judicial Independence. The Supreme Court squanders a chance to check a reckless president."

Get ready. More reckless actions are undoubtedly on the way!

Image Credit:

http://www.brooklyneagle.com/articles/2018/4/23/supreme-court-justice-sonia-sotomayor-postpones-event-brooklyn-bar-association